COREY V. COREY

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COREY V. COREY

State: Florida

Court: Florida Third District Court

Docket No: 08-1461

Case Date: 12/30/2009

Preview:Third District Court of Appeal
State of Florida, July Term, A.D., 2009
Opinion filed December 30, 2009. Not final until disposition of timely filed motion for rehearing. ________________ No. 3D08-1461 Lower Tribunal No. 06-10610 ________________

Michael James Corey,
Appellant, vs.

Erica Lynn Corey,
Appellee. An Appeal from the Circuit Court for Miami-Dade County, Maynard A. Gross, Judge. Fowler White Burnett and Kathy M. Klock and Greg A. Lewen, appellant. for

Simon, Schindler & Sandberg and Roger Schindler and Anthony V. Falzon, for appellee. Before SHEPHERD and LAGOA, JJ., and SCHWARTZ, Senior Judge. LAGOA, J. In this dissolution action, Michael James Corey, the father, contends that the trial court erred in designating Erica Lynn Corey, the mother, the primary residential parent of their son. Because we conclude that the trial court erred as a

matter of law in finding that the father was required to overcome a presumption against rotating custody, we reverse. I. FACTUAL HISTORY The parties, who have one son, separated when the mother left the parties' home in Gainesville and moved with their child to Key Biscayne. The father then moved to Key Biscayne to be near the child and his school. For the two years prior to trial, the parties followed a schedule in which their son spent alternating weeks with each parent. The testimony below unequivocally established that the child was thriving in all respects under this arrangement. In fact, certain health issues from which the child suffered improved in this two- year period. The record contains detailed testimony concerning the parties' respective work schedules. The father is employed as an assistant state attorney. The

testimony at trial established that he ordinarily picks up the child from the school's after-care program before 6 p.m. each day. If, for work reasons, the father is unable to arrive at school by that time, he is able to rely upon family and friends to pick up the child. However, there was no testimony that the father was ever late in picking up the child from the after-care program. The wife is employed as a teacher at the same school the child attends. She leaves work around 4:00 p.m., and is therefore available to pick up the child from after-care each day.

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The father sought weekly rotating custody, or, if the trial court denied rotating custody, that he be designated the primary residential parent. The mother also sought to be designated the primary residential parent. Ultimately, the trial court entered a Final Judgment of Dissolution of Marriage and Other Relief in which it denied the father's request for rotating custody and awarded primary residential custody of the child to the mother. The trial court then entered a Child Time Sharing and Parental Responsibility Order in which it ordered that the child be with the father on alternating weekends, beginning on Thursday nights. In the weeks during which the child would not be with his father on the weekend, he would be with the father on Thursday night. This order was later amended to provide that if the father cannot pick up the child from school on his designated days with the child, the mother will be entitled to do so. In reaching its decision, the trial court found that Florida law established a presumption against ordering rotating custody, and that the father was required to establish "exceptional circumstances" in order to justify such an order. The trial court stated: 1. ROTATING CUSTODY While a Court clearly has the power to order rotating custody (Sec. 61.121, Fla. Stat.) the long prevailing law has been that such an arrangement is presumptively NOT in a child's best interests. In order to overcome that presumption and make such an award this Court would have to find that exceptional 3

circumstances exist which make such an arrangement in the child's best interests. See for example Mancuso v. Mancuso, 789 So. 2d 1249 (Fla. 4th DCA 2001). Florida courts have identified several factors that a trial court should consider in determining whether the particular circumstances in a case have overcome the presumption against rotating custody. Langford v. Ortiz, 654 So. 2d 1237 (Fla. 2d DCA 1995). With the exception of the fact that both parents live in close proximity to each other the Court finds that the longstanding presumption against rotating custody was not overcome by competent substantial evidence. While the Husband believes that such an arrangement is fair to him the Court finds that there was a lack of competent substantial evidence that alternating weeks would be fair to the child nor was there competent, substantial evidence that the frequency of the proposed rotation would not have a disruptive effect on the child and that it would likely not inhibit the development of a stable living environment, as the Wife testified it would. The fact that the rotating arrangement was [sic] been "working" for over a year and that the child has adapted to it is insufficient for the Court to find that it is in his best interests to maintain that arrangement. The mere fact of his adapting does not mean that those circumstances are in his best interests. Ruffridge v. Ruffridge, 687 So. 2d 48 (Fla. 1st DCA 1997). The Court finds that the Husband has failed to prove by competent, substantial evidence the existence of special circumstances to overcome the presumption against rotating custody and his claim for the Court to order rotating custody is DENIED. After an analysis of the factors set forth in section 61.13(3), Florida Statutes (2007), the trial court determined that the mother should be designated the primary

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residential parent because she offered greater stability and continuity,1 and because her work schedule afforded her greater availability to the parties' son in the afternoon hours.2

Specifically, with regard to section 61.13(3)(d), Florida Statutes (2007), the trial court found as follows: d. The length of time the child has lived in a stable, satisfactory environment and desirability of maintaining continuity. Since January, 2006 the parties have shared custody of the child on a rotating schedule which continues through the present date. The Wife testified that she did not agree to this voluntarily and never felt that it was in the child's best interests. Notwithstanding the arrangement, both parents testified that the child was thriving and "could not be doing better", that they were able to communicate and admitted that both were good parents. The Mother lived with her parents on Key Biscayne from the date of separation through July of 2007 when she moved into her own home also on Key Biscayne. The Father subsequently moved to Key Biscayne from Southwest Miami-Dade to be physically close to the child and remains living there and maintaining an apartment suitable and convenient for himself and the child. To the extent possible while the parties have been operating under a rotating custody schedule the child's environment has been stable and satisfactory. However, as discussed above where the Court rejected the Husband's claim to continue rotating custody, there was competent, substantial evidence that living in the same household would be in the child's best interest's [sic] and provide the continuity and residential stability which he needs. The Court finds that greater stability and 5

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continuity will result from the Wife being the primary residential parent. Considering section 61.13(3)(m), Florida Statutes (2007), the trial court found as follows: m. Any other fact considered by the Court to be relevant. The Father is a law school graduate and a member of the Florida Bar. His current employment as an Assistant State Attorney with the Miami-Dade County State Attorney's Office is an important public position with great responsibility. Likewise the Wife, as a Miami-Dade county school teacher has a position of similar importance and level of responsibility. The Husband testified that only rarely would he get off work later than 5:30 P.M. so he would be able to pick the child up from after school care at Key Biscayne Elementary School before it ended at 6:00 P.M. However in the event that he was delayed he had neighbors, extended family or even the Wife, to look to for help in picking the child up until the Husband could get there to take him. This is contrasted to the Wife who would never have such problems and would always be able to take the child home on a timely basis and not need to rely on the help of others. Further, the evidence showed that the child is beginning to participate in extracurricular activities on at least 2 day/week which ends at 4:30 P.M., a time which the Husband would rarely or never be available to pick him up, again requiring him to rely on neighbors, family or the Wife. The Court finds that the availability of the Wife, be it after-school or in the case of an emergency, is a significant factor to consider in evaluating what custodial arrangement is in the child's best interests. Further, while both parties have a network of extended family members, the Wife's 6
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II.

ANALYSIS On appeal, the father primarily argues that the trial court erred in applying a

legal presumption against rotating custody and in further requiring him to prove "exceptional circumstances" in order to overcome that presumption. We find merit with the father's position. A. No Presumption Against Rotating Custody In 1997, the Legislature enacted section 61.121, Florida Statutes, which states as follows: "The court may order rotating custody if the court finds that rotating custody will be in the best interest of the child." See Ch. 97-242,

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